Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Friday, March 13, 2009

U.S. v. Hammons (9th Cir. - March 11, 2009)

When you have Judges Pregerson and Dorothy Nelson on the panel, you sometimes get an opinion that's much nicer to -- e.g., softer on -- the participants than you might receive from some other judges. For example, here is what Judge Pregerson says about one of the arguments that the AUSA made at oral argument:

"The Probation Office also alleged that Hammons had violated the conditions of his supervised release by failing to show up for a drug test and by testing positive for alcohol use. Hammons denied these allegations and they were ultimately dismissed by the government. The district court stated that these allegations were not 'the subject of the sentence' and are not at issue in this appeal. The government’s suggestion at oral argument that these dismissed allegations provide insight into the district court’s sentencing decision is troubling."

Trust me when I say that an opinion by a wide variety of other judges wouldn't have left it at "troubling". And wouldn't have put the comment in a footnote, either.

By contrast, while not making it personal at all, Judge Pregerson doesn't show a massive amount of restraint towards Judge Stephen Wilson. Judge Pregerson notes that at the time Judge Wilson delivered the sentence, the law in the Ninth Circuit was clear that the sentencing judge was required to consider the § 3553(a) factors and state on the record the reasons for imposing the sentence it selected. Notwithstanding this fact, the only "explanation" that Judge Wilson gave for choosing the high end of the guideline range -- ten months in prison -- even though the Probation Office had suggested merely putting the defendant in a recovery program was the following: "I don’t give sentences without careful consideration. That’s the sentence.”

That doesn't quite cut it. And not only does the Ninth Circuit unanimously reverse, but Judge Pregerson also makes clear that "the flagrant nature of the district court’s error alone is sufficient to establish plain error." Which was the second time in the opinion Judge Pregerson used the term "flagrant" to describe the error by Judge Wilson.